Barnard. B. R. 367. Crofs remainders have never been adjudged to arife thete words, In default of fuch ijue. merely upon he has a right to enjoy the fame, as ftanding in the place of Margaret Lee, on whom, upon the death of John Owen her brother, the eftate defcended by furvivorship, and that she became intitled thereto by a cross remainder under the teftator's will. The plaintiffs claim the benefit of their several devifes under the will of Margaretta Farmer, and have brought their bill, in order that the plaintiff Eleanor may, on paying her fhare of the mortgage, have a conveyance of a moiety of the premiffes, and that the may be let into the receipt of one moiety of the rent, and that a partition may be made of the faid premiffes, and that the may be quieted in the poffeffion of a moiety thereof, in feveralty for the plaintiff's benefit. Lord Chancellor : I am of opinion, that the will in this case is not fo penned, as to create a cross remainder, which, as it is never favoured by the law, can only be raised by an implication abfolutely neceffary, and that is not the present cafe, for here the words feveral and respective, effectually difjoin the title; his Lordship for this purpose cited the case of Comber and Hill, in the King's Bench. H. T. 7 Geo. 2. 1733*. The only inftance wherein this case differs is, that in the cafe of Comber and Hill, all the devifees were grand children, in equal degree to the teftator, and in this cafe the devife over was to the wife, who could not claim as heir at law, but yet the prefumption of kindness was as ftrong in favour of a wife, and then this does not differ from the reafon of that cafe. In the cafe of Holmes and Meynell, T. Raym, 425. a great trefs was laid upon the word they, in case they happened to die, then he devised all the premiffes, nor can there be any cafe cited, where crofs remainders have been adjudged to arife merely upon these words, in default of fuch iffue, and therefore his Lordship declared, that the plaintiffs Eleanor Davenport, John Davenport, and the defendant Richard Owen, are intitled to the equity of redemption of a moiety of the premiffes, on payment of a moiety of the principal and intereft on the faid mortgage, and that in cafe either of the plaintiffs, or the defendant Richard Owen, fhould redeem the faid premiffes, then he decreed that a commiffion fhould iffue, to divide the John Holden, being feifed of feveral lands in fee, devifed to his fon Richard for his life, with remainder to his iffue in tail male, and after his death without iffue, he demised the premifles among his three grandchildren in this manner, To his grandfon Richard and Elizabeth his grandaughter as tenants in common, and to the heirs of their respective bodies, and for default of fuch iffue, the remainder to his grandaughter Anne Holden in tee: Anne married, and afterwards Elizabeth died without iffue of her body: The queftion was, Whether Richard Holden and Elizabeth took an estate in common, with crofs remainders to the heirs of their bodies, for then the estate could not vest in Anne, but upon failure of iffue of both their bodies, or whether this was an eftate in common, with remainders to the heirs of their bodies generally, for in that cafe, one moiety of the eftate would veft in Anne, who had the remainder in fee, immediately upon the death of either of them without iffue: The court were of opinion, that no crofs remainders were created by this devife, but that by the death of Elizabeth her moiety went over to Anne. premiffes premiffes into moieties, one moiety to go to the plaintiffs Eleanor and John Davenport, and the defendant Owen, according to their intereft therein, and the other moiety to the defendant Oldis, and, after such partition made, he directed proper conveyances to be executed by the feveral parties. H March the 12th, 1738. Hopkins alias Dare v. Hopkins. EARD upon the 3d of March, and ftood for judgment Cafe 273. this day. trustees and their words are decla John Hopkins the teftator, having a large real and perfonal 7. H. devised his eftate, makes a difpofition of both by his will, and as to the bulk real estate to of his real estate, devifes the fame to trustees and their heirs, heirs, to the use to the use of them and their heirs, upon several trufts, viz. for of them and Samuel, the only fon of his coufin John Hopkins for life, and their heirs, upon feveral trufts after his decease, in truft for the first and every other fon of the therein after menbody of the faid Samuel, to be begotten fucceffively, and the tioned. Thefe heirs males of the body of every fuch fon refpectively, and for ratory of his inwant of fuch iffue, in cafe his coufin John Hopkins fhould have tention, that the any other fon, then for all and every fuch other fon for life, legal eftate fo given, fhould be with like remainders to their iffue male, and for default of ufed to fupport fuch iffue, to the first and every other son of the body of Sarah, all these trufts eldest daughter of his faid coufin John Hopkins for life fuc- and limitations ceffively, with like remainders to their iffue male, and for want part of which of fuch iffue, the like remainders to the firft and every other were to the after fon of Mary, fecond daughter of his faid coufin John Hopkins, H. and the court born fons of J. and their iffue male, and fo carries on the limitation in like made fuch a conmanner, in respect of the other daughters of his faid coufin, ftruction as fupthen in being, and for want of fuch iffue, in cafe his coufin tion, being of John Hopkins fhould have any other daughter or daughters, then opinion it was in truft for their firft and every other fon in like manner, and not inconfiftent with the rules of for default of fuch iffue, in truft for the first and other fons law and equity. of his coufin Hannah Dare, with like remainders to her first and every other fon and their iffue male, with remainders over to other relations, remainder to his own right heirs. Then comes a provifo, that none of the perfons to whom the eftate was thereby limited, fhould be in actual poffeffion of the whole, or any part thereof, till he or they respectively attained his or their age or ages of 21, and in the mean time, the truf tees to make a handfome allowance for the education of fuch perfons, and the overplus to go to fuch as fhould be intitled thereto. These are the feveral limitations and provifoes, materially relating to the real estate. Then he devises all the reft and refidue of his perfonal estate, in cafe there should be any, after payment of debts, &c. to his executors in truft, to be, with all convenient fpeed, laid out in the purchase of lands, and to be fettled to and upon the fame Pp3 trufts after declared ported the inten trufts and purpofes in his will declared of the real estate he was then feifed of, and made the trustees his executors. Samuel Hopkins the firft devifee died before the teftator, which, after the teftator's death, occafioned the bringing two bills, one by John Hopkins and his daughter, to have an account, and an execution of the truft, and John Hopkins prayed, that, as heir at law, he might have the profits till fome perfons come in esse, capable to take under the will, as part of the trust undifpofed of; the other was brought by the trustees, that till a perfon was in effe, capable of taking, the profits might be accumulated to increase the eftate. Thefe caufes were heard before the Master of the Rolls in 1733, and it was admitted on all hands, that if Samuel had furvived the teftater, he would have taken (at least) an estate for life, in the truft in poffeffion, and all the fubfequent limitations between him and the prefent plaintiff, would in fuch cafe have been contingent remainders. But it was infifted for the plaintiffs in the original cause, that, by the death of Samuel in the teftator's life, that devife was void, and was to be confidered as if it had never been inferted, and that if the subsequent limitations could not take effect as contingent remainders, they might, by way of executory devife, and that they should operate as they could, ut res magis valeat quam pereat. For the prefent plaintiff it was infifted, that by the death of Samuel, the eftate of freehold devised to him, became void, and fo confequently the contingent remainders, and that the law cannot admit a limitation in its original creation, a contingent remainder, to be by an accident changed into an executory devife. The Master of the Rolls was of opinion, "That the limitation "to Samuel Hopkins was to be confidered as if it had never been "in the will, and therefore that the devife to after-born fons "being by future words, in cafe his coufin John Hopkins "fhould have any other fon, it was now to be confidered as the firft devife, and might take effect as an executory devife." Lord Chancellor Talbot was of the fame opinion on the appeal, (Vide Caf. in Eq. in his time, 44.) and decreed, the truftees to deliver poffeffion to the plaintiff John Hopkins, (of particular eftates) and of the eftate purchased by the "teftator, after the making the will, and to deliver the deeds "and writings to him, and declared he was intitled to the rents "and profits devifed to the trustees, accrued fince the tefta"tor's death, till fome perfon fhould be in being intitled to an "eftate for life in poffeffion (which makes no difference in the "decree) according to the limitation in the will, and was intitled to the furplus produce of the teftator's eftate, after payment of the annual fum charged thereon, and directed an account of both the real and perfonal eftate, and a like "direction as to the perfonal eftate for invefting it in lands: "There was no direction given concerning a conveyance of 66 the the eftate, but a general reservation, and liberty to apply to "the court, as there fhould be occafion." This was the decree then made, and upon great confideration, and as to the point on which it was established, it is not difputed in this cafe, because the plaintiff here founds himself by the prefent bill, exprefsly on the foot of that decree. Since that decree, two new events have happened, which have given rife to this fuit. John Hopkins, on the 18th of June 1736, had another fon born, named William, who died the 24th of Dec. 1737, and on his death, the plaintiff, the eldest son of Hannah Dare, having attained twenty-one, brought this bill to have a fettlement made by the trustees, and first prays an eftate may be limited to him in poffeffion, and alfo an account of the profits during William's life, and that the furplus profits may be paid to him. Mr. Chute for the plaintiff. This is a contingent remainder, and not an executory devife, for the eftate for life in the first taker, is a vefted intereft, and confequently the contingent remainder vefts at the fame time. Pays's cafe, Cro. Eliz. 848. The teftator has laboured to give to an un-born perfon, what he apprehends was never given to any un-born perfon before, for he has reftrained the vefting of the freehold, and fufpended it further than any court whatever has attempted to do. What we contend for is, that admitting this was an executory devife in the second son of John Hopkins, yet after he was born, whatever was executory, was then executed, and the freehold eftate for life vefted in him, with remainders to his firft and every other son, and as he has died without ifsue male, the contingent remainder takes place in the plaintiff. Lifle v. Gray. No difference between the limitation which did come in effe by the birth of William, and the limitation which would have come in effe immediately, if Samuel, the first son of the nephew John Hopkins, had furvived the teftator but an hour. The provifo in the will, is an abridgment of the power which is given to the first taker, of holding an eftate for life, and is for that reafon void, as much as if a perfon fhould appoint one executor, and then reftrain him from adminiftring. Taylor v. Brydal, 2 Mod. 289. The question will be, Whether, notwithstanding William the fon was born, the whole rents and profits of the teftator's eftate fhall ftill accumulate, till the infant would have attained his age of twenty-one, or whether by the birth of William the freehold abfolutely vested in him. If a man in a will attempts to give fuch an estate as the law does not admit, and endeavours to raise fuch a contingency as it will not allow, they must take their fate according to the rules PP 4 rules of law. Reeves v. Long, 3 Lev. 408. Salk. 227. the cafe which introduced the ftatute of King William, as to unborn children. Executory devifes had their original here, but the reason of it was fo ftrong, that the courts of law foon conformed to those rules. No body is intitled to take the profits under Lord Chancellor Talbot's addition to Sir Jofeph Jekyll's decree, but John Hopkins, and the court is filent as to every other perfon. What is the terminus a quo under the laft decree? Why, until a perfon is born, who is intitled to take an eftate for life in poffeffion, for otherwife my Lord Talbot would have added, until fuch perfon arrive at the age of 21 years. It would be repugnant to fay, that John Hopkins took an ef tate for 21 years, at the very time that his eftate as heir at law ceafed upon the birth of his fon. William was not in effe at the time of the executory devife, and therefore to say it is ftill executory, is carrying this doctrine further than was ever yet attempted, for it will wait longer than the compass of one life, for here is the life of William who is dead, and the life of a perfon who is unborn. Mr. Noel of the fame fide. The only question, Whether the contingent remainder takes effect in poffeffion in the plaintiff, upon the death of the second fon of John Hopkins? Or whether it is ftill to wait, till the birth of another son of John Hopkins. As an executory devife was introduced to fupport and affift the rules of law, this court will not conftrue an executory devise in such a manner as to overturn the rules of law. Lord Chancellor: Pays's cafe is likewife reported in Noy 43. and differently stated from what it is in Cro. Eliz. 848. Mr. Noel: It was only neceffity that obliged the court to conftrue it an executory devife, at the time of the decree of Lord Chancellor Talbot. But as here is a fon of John Hopkins born fince the decree, this neceffity ceafes, and eo inftante the eftate for life vefted in poffeffion in the fon, the contingent remainder rested in the plaintiff. The teftator allowed the truftees to expend fuch a fum upon the birth of the first person, who fhould take an estate for life in poffeffion, by way of education, as is fuitable to the largeness of the eftate he is intitled to at twenty-one, fhews the intention of the teftator, that it fhould veft in the first taker. Bate's cafe, Salk. 254. Lord Chancellor: The word immediate was put in at first by Lord Talbot, in his decree, in his own hand, but ftruck out afterwards, and ftands now as has been before mentioned, viz. inftead of immediate eftate for life in poffeffion: only, eftate for life in poffeffion Mr. Green of the fame fide, cited Dyer 3 & 4 Pollex. 430. where it is laid by a very high authority, that the intention of a teftator |